Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, March 20, 2018

Official Report 622KB pdf

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Environmental Implications for Scotland of the United Kingdom leaving the European Union

Agenda item 2 is to hear evidence on the environmental implications for Scotland of the United Kingdom leaving the European Union., from Roseanna Cunningham, the Cabinet Secretary for Environment, Climate Change and Land Reform, and Michael Russell, the Minister for UK Negotiations on Scotland’s Place in Europe. They are accompanied by Scottish Government officials Kate Thomson-McDermott, Ian Jardine, Euan Page and Julie Steel.

We move directly to questions. What is the Scottish Government’s view about the policy areas that the UK Government has said are reserved?

We dispute some of them. The history of the matter needs to be set out. The discussions on the areas of intersection between EU competence and competences of the Scottish Parliament have been going on for some time—since last summer, in fact. By last December, we had hammered out the list of 111 items, which was divided into three sections. I am sorry to repeat this, but that list provides the context for where we now are.

The three sections included items on which no further action is required; items for which there would be non-legislative solutions, many of which are already in place—things such as memoranda of understanding or normal ways of working; and a list of 24 or 25 items, depending on definition, that might require legislative frameworks. That last section is the problematic one, although we maintain that agreement is required for all the items, and that decisions on those matters—even if they are out of scope—should be made not by the UK Government but by the devolved Administrations.

Until two weeks ago there were just three categories. However, two weeks ago a paper was produced that was not shown to the two relevant ministers—me and Mark Drakeford—but was entered into the discussion at a meeting of the joint ministerial committee (European Union negotiations) without our having seen it. It was impossible for us to discuss it, because we did not know what we were discussing.

That paper included a fourth category: a list of items that the UK Government now says are reserved and are, therefore, outwith the scope of any of that discussion. Decisions had been made and the UK Government would not even talk about the items any further.

We have looked at that list, and our initial analysis—I stress that it is an initial analysis—is that the inclusion of state-aid rules, timber-trade rules and protected food names could be, and will be, contested. We do not accept that the list is accurate.

State aid is a very interesting part of that, because the state-aid issue has always been dealt with by the UK, but on the basis of Scottish, Welsh and Northern Irish administration of the rules for those parts of the UK. It appears that what is now being suggested is a single UK system that would be administered only by the UK Government, which in that context would be judge and jury in its own cases. We would be dealing with state-aid rules that were set by the UK for the UK, so if there was any dispute about them, the UK would decide the outcome. That might sound strange, but that is actually how the JMC operates. Any complaint about the process of the JMC ends up with the UK Government, which says, “Nothing to see here. Move along.” We must and will dispute that proposal.

We do not accept the list. We think that it should be a matter for discussion, and that it has to go back in and be part of the discussions that are taking place.

Have you had any feedback from the UK Government on that desire on your part?

09:45  

There has been no formal discussion of the paper because, as I said, it was entered into the discussion 10 days ago without any prior discussion with us. There now needs to be formal discussion of it, and our officials are starting that process. We have not .yet had any indication that there is any flexibility, but we cannot accept the list or a process in which decisions are simply made without us.

You mentioned further discussion. There are 24 policy areas that might require legislative arrangements, which will have to be worked through. How do you envisage agreement being reached on whether a framework is necessary? What form do you envisage it taking? What will happen if there is a difference of view?

The positions have been well rehearsed. Obviously, we have talked about the matter substantially in recent weeks. Let us accentuate the positive. We started last July with the UK Government’s view that every item on its list of intersections would go to Westminster and that there would then be, in some unspecified time period, some unspecified action that would result in some of the items coming back by agreement. We and the Welsh Government of course refused to accept that.

We are now in a position in which the UK Government’s official position, as I understand it, is that the only areas of contention are the 24 items. However, it has reserved the right to add to that list at any time, should a new item drift into its consciousness. There has been a major discussion about the fact that, if the UK Government suddenly realises that it wants to have something else on the list, it can simply put it on the list. Ostensibly, however, the final list of 24 or 25 items—the December list has 25 items on it, but the present list is slightly different—is the list of items on which there could be a need for legislative frameworks. I have provided members with the analysis of that.

There has been a deep-dive exercise on all those issues and some others, which has brought together officials from Wales, Scotland, Northern Ireland and the UK to discuss what types of framework might be required, whether there should be legislative frameworks, whether we can continue or intensify present methods of operation or whether something else needs to be done.

I will give an example. On agricultural support, the UK Government is planning an agriculture bill; one might expect that a framework for agricultural support in these islands would be part of that bill. The bill would require our involvement in putting it together and it would require legislative consent. That is quite clear.

On fishing, the situation is not so clear—leaving aside the current situation—because there are existing arrangements that operate on an essentially collaborative basis, whereby work is done between the Administrations. We know that there is to be a fisheries bill, but we do not know whether it will contain a new set of legislative frameworks or will seek to continue the current informal arrangements. We will have to discuss that.

The point is willingness to enter discussions. Were the UK Government to say what items it thinks should form the basis of frameworks, I think that it would not be difficult to find agreement. It could then ask us and the Welsh Government whether we agree, and ask us to work together towards determining how it would happen, with a formal structure and a dispute resolution procedure.

Interestingly, there was an amendment in the House of Lords yesterday from Lord Mackay of Clashfern—of course, none of the amendments was voted on—that begins to tackle the issue. I have talked to James Mackay about his amendment and the process that we are going through. He has—very acutely, of course, as he would—seen that the issue is about developing first a structure of getting consent, and secondly a structure for resolving difficulties if consent cannot be given. I do not agree with the particular solution that he proposes, especially in relation to the second aspect, but his amendment is an important contribution. It builds on the work of the Welsh Government, which last August published a paper on relationships within these islands.

It will come as no surprise to the committee that I believe—others do, too—that Scotland should be independent, but even so, there will need to be some sort of structure that governs relationships between the nations of these islands with a devolved Scotland, let alone with an independent Scotland. How do we achieve that? The Welsh have put forward some interesting ideas about a council of the isles or a way in which we could work together on agriculture, fisheries, the environment and other subjects.

We are keen to have those discussions, as are the Welsh, and members of the House of Lords are waking up to the matter. However, the UK Government does not want to have those discussions—it wants to continue with the JMC and its dominance of the situation. That is not acceptable.

How will the impasse be broken?

I was about to say that I have no idea, but I have lots of ideas. However, although I have lots of ideas, I am not sure how the impasse will be broken. We will continue to discuss ideas such as those that are being discussed in the House of Lords.

The basic principle cannot be avoided: that is the heart of the matter. The basic principle of ensuring that there is consent or agreement for use of the powers that are in the control of the Scottish Parliament, the National Assembly for Wales and, by extension, the Scottish and Welsh people, cannot be overridden. If the UK Government gives that recognition of the existing devolution settlement—that is all it is—then there is a way forward. That will involve negotiation and the frameworks will fit into that. If we move forward in that way, legislative consent can be given to the European Union (Withdrawal) Bill. If that is not the case, we will move forward using our own bill—which I hope we will pass this week—and the UK bill, and find a way between the two to ensure that the frameworks operate.

Somehow or another, we have to make it work. However, the best and easiest route is currently being resisted by the UK Government. The other route will be harder, but we will simply have to make something work.

Does what you just said also cover the other policy areas in which non-legislative common frameworks would be required?

Yes, it does. Let us leave aside things that need no action because, by definition, they should have no action. However, the UK Government reserves the right to change that definition at its whim, so I am not 100 per cent certain that that will be the case—I am 99 per cent sure. In the middle area, more discussion will be needed, but those policy areas will be easier to resolve because we do not anticipate that legislation will be required.

Those of us who do not necessarily see independence as the answer would still argue that, if we are going to negotiate frameworks, the states of Scotland, England, Ireland and Wales need to go to the table as equals. If we accept the principle that they start as equals, the dispute-resolution mechanism will be key.

In the process for developing the frameworks, how will the Scottish Government engage with key stakeholders? Let us take fisheries or farming as examples. What would you prioritise in the process and the timescale, and on what would you base that?

I very much agree with Alex Rowley’s first point. That is the basis of our close work with the Welsh Government, which is not a nationalist Government. I work closely with Mark Drakeford and will continue to do so. We have different end points and objectives, but at this stage in the journey, we absolutely accept the need for the nations to be treated equally and we behave in that way. It is a simple principle. It is a pity that at least one of the four Governments cannot accept it because, if it can be accepted, everything else will flow from it and we would not be in the difficulties in which we find ourselves.

There is intensive engagement with stakeholders at a number of levels, and the normal engagement of a cabinet secretary with his or her stakeholders carries on regardless. At this time, the topic of much of the engagement will be Brexit. The cabinet secretary has held at least two big events for stakeholders and there are many regular events.

Another level of engagement is my meeting stakeholders jointly with cabinet secretaries, and separately. I continue to do that in a variety of ways. Such engagement has been somewhat interrupted in the past three or four weeks by other work in Parliament, but I have an intensive diary of engagement, which will continue: it recommences next week. For example, I will be in Aberdeen for a day next week. I will continue to talk to people.

Prioritisation is difficult because everybody is worried about the timescale; everybody is looking at the matter and saying that we need action now. The example of the pharmaceutical industry springs to mind. The uncertainty about the UK’s membership of the European Medicines Agency has created a circumstance in which companies have been expending very considerable sums of money—millions of pounds—to ensure that their products are reregistered and recertified in order to allow the present situation to continue.

Now, however, the UK says that it wants to continue its membership of the European Medicines Agency—that was part of the Mansion house speech—but there is no mechanism for having an additional country as a member, so that will have to be negotiated. The pharmaceutical companies say that they have a lead time for what they do. We passed the first trigger point for that last autumn, so they had to start expending considerable sums of money. They will now be saying—I will need to re-engage with them in the light of yesterday’s document on the possible transition period—that their time horizon has altered and that certain things will need to happen so that they know that membership of the agency is in place so that they do not have to spend even more money. We must recognise the dynamic in each sector and respond to it.

That will become quite pressing this summer in hospitality, agriculture and horticulture, in all of which there will be further diminution in the labour that is available. People will say that a new migration system that guarantees the labour supply needs to be put in place. The time horizon for that was last year, because there has already been a diminution of the labour supply, and there will be a further diminution in 2019 and 2020, as workers anticipate what will happen.

The migration white paper was due before Christmas. At a meeting, I asked the then Minster of State for Immigration, Brandon Lewis, whether he would guarantee that it would be published before Christmas. He would not say that, but said that it would appear sooner rather than later. The UK Government is now saying that the migration white paper will not appear until the end of the year. If that is the case, we will have missed this year. We do not know what will happen, but we know that EU citizens can continue to come here until the end of 2020 and will qualify for the same treatment as other citizens. The UK Government agreed to that concession in the transition document that came out yesterday. The pressure will mount, so we need to know when decisions will be made.

Part of our job is to remind the UK Government constantly of what the sectoral priorities in Scotland are and how they should be dealt with. The financial services sector is another example; I talked to someone in financial services yesterday: it has a time horizon, which it is missing at the moment.

So, it is very difficult to say what the timeframe is. Given the uncertainty about the timescale and about what will be involved, is the Scottish Government satisfied that it is deploying enough resources on this? What are the implications of focusing so heavily on Brexit and related areas of policy development?

Although that is, of course, an issue, I do not think that we are nearly as badly off in that regard as the UK Government, for which Brexit is a black hole that is sucking in all endeavour and all activity—it is not possible to have a conversation in Whitehall that is not about Brexit. We are conscious of that, and we have structured ourselves differently from the UK Government. I operate in a different way from how the Department for Exiting the European Union operates. I am perhaps more fleet of foot than DEXEU is, if I can put it that way—although that is not necessarily how I feel after the past month. I work closely with all the cabinet secretaries to provide them with advice and support, and I report directly to the First Minister.

I have never been constrained by resources; the things that I think need to be done are done. The UK Government has allocated an initial sum of £3 billion to the task of Brexit—in my opinion, it will cost a great deal more than that—and we are in negotiations about allocation of some of that money to Scotland. Regrettably, we will have to spend what it takes to do this. It is an enormous waste of money; there are other things that we could do. However, because we are operating differently, I am able—I hope—to support my colleagues in a way that allows them to focus on other things, including a legislative programme that has ambition, which is making its way through Parliament.

Cabinet secretary, do you want to come in on that point?

Yes—because my portfolio and the rural economy portfolio are probably the two portfolios that are experiencing the biggest impacts from this work. There has been some restructuring within the Scottish Government in order to manage the process. We felt that that was absolutely necessary.

Brexit represents a major challenge. Mike Russell mentioned the UK Government’s £3 billion spend. It is worth noting that, from within that, the Department for Environment, Food and Rural Affairs and the Department for Business, Energy and Industrial Strategy have been allocated significantly higher funding than any other departments because of the portfolio impacts down there. So far, the indications are that the Scottish Government will get only about £37.3 million. Obviously, if that is the figure, a decision will need to be made about how it is allocated and whether that resource is sufficient. That means that we must, whether we like it or not, approach the issue using risk-based prioritisation of areas in order to continue to deliver on policy and manage the process.

10:00  

The process is very complex. I have an example of the kind of thing that has to be gone through, which I will walk the committee through, if members want to hear it. Officials have given me just one example to show the scale of the task that confronts us—and that is just in identifying potential legislative deficiencies. I do not expect committee members to write this down and think about it, because it is quite complex, but I want them to understand how the process has to work.

The Pollution Prevention and Control (Scotland) Regulations 2012 is one item of legislation. Regulation 26A of those regulations, as amended by amending regulations, states:

“SEPA must ensure that a permit contains such conditions as it considers necessary to give effect to the provisions of schedule 1B”

to those regulations. Therefore, it appears as though the terms of regulation 26A would not be affected by withdrawal, if it is understood as I have read it out. However, three quarters of the way through schedule 1B, which is referred to, paragraph 1(7) states:

“An existing medium combustion plant is exempted until 1st January 2030”

from the air quality requirements in other parts of the schedule if

“the plant is situated in a zone which conforms with the limit values set out in Directive 2008/50/EC”.

At that point, we have to go to the directive, which defines the zones with reference to member states. As a result, that exemption will no longer work after withdrawal from the EU, because medium combustion plants in the UK will no longer be in a member state. That renders the original provision deficient. Therefore, the definition in that statutory instrument will no longer work.

That is just one regulation from hundreds of statutory instruments. That is the kind of work that will have to go on as the weeks and months go by.

How big an issue is the scale of deficiencies?

We have to go through all those statutory instruments to establish that. I would imagine that the scale is significant.

We are talking about 400, 500 or 600 instruments that need to be looked through across Ms Cunningham’s portfolio and the rural economy portfolio. Their size can range from a page or two to hundreds of pages. Obviously, we need to look through the Scottish domestic legislation, and the directives and regulations that have to be referred to can extend to hundreds of pages. That is just looking at the legislative aspects; it is not looking at day 1 readiness in respect of administration, policy, funding and delivery on the ground.

What resource has been directed to that? How far into the process are you? Realistically, when is it envisaged that that process will be concluded?

We are in the process. I would not have been able to give members that example if we were not.

How far into the process are you?

We are not anywhere near finished. It will take a considerable time, and I warn the committee that it will probably take a considerable amount of committee time when we start to look at the resolution of the process.

A lot of work is happening. We are in the process of identifying all possible deficiencies, but some of that will depend on the terms of the withdrawal agreement. At the moment, it is difficult to assess matters, and you have heard from Mike Russell about the uncertainties. It has been only in the past 48 hours that we have heard what the transition period and the terms of any future UK-EU relationship will be. If the terms work out in relation to the pharmaceutical industry, some matters might not have to be dealt with earlier on and could be left until later. However, at the moment, we are in a world of uncertainty.

The bill before the Parliament has categories of items that must be repatriated. Roseanna Cunningham was referring to specific secondary legislation. All of it—there are many thousands of items—will have to be looked at. That is not surprising: we have been involved with Europe for 46 years, so there is bound to be a vast amount of material. The number that will contain deficiencies—that is, things that would render an instrument inoperable were they to continue—is a matter of speculation, but I estimate that the amount of secondary legislation going through in the next couple of years will double from 300 to 600 items. Perhaps it will be more; it will depend.

To be fair—I do not want to overstate this, because sometimes it is possible just to hold up one’s hands and say how horrific this all is—most officials will know well the area in which they work and where the European links and issues are, and will pick up any deficiencies. People such as Ian Jardine have worked in Europe and Scotland and are familiar with those links, too. The amount of work is significant, and we are into it.

There is a Scottish Government-wide set of responsibilities. Roseanna Cunningham has raised two important points. First, we do not know the detail of the withdrawal arrangements. That will affect matters. Some things may remain the same, and we do not want to have to change something only to have to change it back—that is important. Secondly, we do not know the timescale. If what is set out in the transition document eventually happens, we have got until the end of December 2020. If that is not the case and something goes badly wrong this autumn, for example, we will not have that time. If there is a longer period of transition, which is talked of quite a lot among the EU27—although it is interesting that this morning there was no political noise about what might or might not happen—we might have a longer period in which to do it.

At present, we are focusing on our having until December 2020, the job of work that we must do by then and the individual portfolios, as Roseanna Cunningham indicated, and on trying to make sure that we understand the context in which this is happening.

Good morning. On resources, I have no doubt that withdrawal will cause extra work for a lot of people. Does that give you good grounds for asking for a greater slice of the pie in relation to the Scottish Government’s budget?

If you were to ask any cabinet secretary about their portfolio, they would always be able to come up with arguments for having a greater slice of the pie. I remind everyone that we did better than other portfolios in this year’s budget, some of which is a reflection of the importance of a number of the areas in my portfolio. We can argue about the Scottish pie, because it is nowhere near large enough for any portfolio to have the resources that we would all want. That is a self-evident truth; we will always be looking for more.

On the argument about the share of the Scottish Barnett consequentials, the UK is spending £1.3 billion, but its intention at this point is to give us 2.5 per cent of that—£37.3 million. Internally, I will argue strongly that there are two portfolios that probably need assistance more than others but—come on—the fact that we are getting 2.5 per cent of what the UK Government thinks that it is appropriate to spend on this shows you the inequity there, before we even begin.

It is way above my pay grade to decide what people should get out of the Scottish pie, but I have absolutely no doubt that the pie that should be sliced to pay for this is the United Kingdom pie, because it is the United Kingdom that is dragging Scotland out of the European Union. The cost of the exercise should therefore be paid by the UK Government.

On common frameworks, we have talked about the existing arrangements that we have around fisheries and the common framework that exists, up to a point. Presumably, we could be heading towards a bilateral agreement between the UK and EU with regard to fisheries next year, in advance of quota setting in late 2019.

Has there been any progress in terms of a shared analysis between Scotland and the rest of the UK on the principles that sit behind the CFP? On the face of it, the Scottish Government perhaps shares some of the UK’s criticisms of the CFP and some of the desire for reform. Indeed, that was part of the argument that was made about Brexit. What are the discussions like in relation to that particular shared framework? Do you have agreement about areas that you like and areas that you dislike?

None of us has made a secret of the fact that the CFP has not been fit for purpose for many of Scotland’s fishing communities. However, to be fair, I think that that is a question that would be better addressed to Fergus Ewing, as the detail of that policy is for him to take forward.

Let me just say that the transitional agreement indicates that it is not 2019 in which there will be a discussion about quota but 2020. In 2019, there will be a right of consultation, not a right of decision making. Any changes will not kick in until 2020, despite the assurances that have come from certain political figures that we will be leaving the CFP in March 2019. Those claims were not true—they were always not true. Indeed, people who asserted that that was going to be the case were guilty of a cruel deception.

Supporting the CFP is not something that I would do, as I believe that there need to be changes. However, the issue is one for Fergus Ewing. I am sure that he will take note of the fact that you have asked me that question and that he will respond to you if you write to him.

Presumably, there are areas that cross over into issues around the environment, because the CFP deals with the ecology of our marine environment, and fisheries is one of the pressures in that regard.

Yes. The marine environment is one of the areas in relation to which there are on-going discussions about what a post-Brexit scenario will look like. However, as far as I am aware, those discussions are not taking place in the context of a discussion about the CFP, per se.

People need to understand that the deep dives that we are talking about are all done at the level of officials, and that ministers are not involved at that stage. They take the form of discussions between officials to try to hammer out what is and is not in scope. However, all of that is caveated by the understanding that those conversations do not have ministerial endorsement, and that anything that emanates from them would need to go to ministers for discussion and endorsement.

The interpretation of the fishing section of the transition agreement is becoming even clearer. It is now clear that it says that, although the UK will be allowed to join the delegation at the quota talks in 2019, it will not be allowed in the same room, it will not be part of the negotiations and it will not be in head of delegation meetings. In actual fact, this is a very much, much, much worse deal than even the present deal.

On environmental policy, some time ago Friends of the Earth Scotland raised issues about loss of control in areas such as renewable energy, climate change, air quality and fracking, and Nourish Scotland has said that taking responsibility for food standards away from Scotland could result in a diminution of the quality of the food that we eat. I raised those issues in the Parliament chamber with the cabinet secretary a good few months ago. Given that we are further down the line now, can those organisations take any comfort that we have moved closer to resolving those issues?

10:15  

I do not believe that any of our external stakeholders feels at the moment that there is a resolution in sight. A better conversation is now taking place about broader environment principles. We finally got that on to the devolved Administrations meeting in December last year, and that was our first substantive conversation around the broader environmental side. However, the more granular discussions about impact on the environment are taking place not at that level but at official-to-official level, as officials try to bottom out what is and is not going to have an impact.

I do not want to put words into organisations’ mouths, but I have not heard any organisation say that it feels that things are beginning to go in the right direction, in terms of what it might want to see. There is still considerable anxiety about certain aspects of the lists that Michael Russell mentioned. Climate change and genetically modified foods continue to be a concern, for example. There is a range of issues for which there is no resolution yet. I am not sure that I have heard any of our partner organisations say that it feels that resolution has come any closer.

I declare an interest as a farmer.

I suppose that what is clear is that things are unclear. However, minister, in as much as you are able, can you say what progress has been made with respect to new, post-Brexit funding frameworks, such as environmental funding frameworks, to replace the common agricultural policy structural funding for research and development?

Obviously, there are continued conversations but, to my knowledge, nothing has been decided in any definitive way. We have to continue to work with the UK Government at every level in respect of future funding arrangements, which are vitally important, but there is a lot of concern about the fact that we do not have any details yet of successor arrangements for a post-Brexit scenario. We continue to press the UK Government on that, but we need the devolved Administrations to be engaged in the decision-making process around future funding arrangements, rather than being regarded as consultees.

We have just heard that the UK is going to be put in the position of being a consultee on fishing. We are hearing how unsatisfactory that is considered to be, but in Scotland we are in danger of being in that position for a lot of issues. Research and development continue to be a significant concern in terms of future funding, and we still have no resolution on that. We continue to press the issue, but there has been no detailed discussion yet about what we will potentially have post Brexit, which makes matters extremely difficult for us.

That takes us back to the conversation that we had earlier about how we could spend a lot of time and effort planning for a scenario that turns out not to be the one that is chosen. In that case, we would not only have to go through the same process again for a new scenario, but we would have wasted time planning for a scenario that did not eventuate.

There needs to be understanding in the UK Government of the way in which Scotland accesses funds and why those funds are important. Out of that, there needs to arise an agreement on a clear, rules-based system that advantages those areas that need the funds most. That is where we should start.

We see, for example, that CAP payments are going to roll forward to 2020. Mr Gove made a commitment to 2024, but I do not know whether that agreement has stuck or whether there is any Treasury backing for it. The commitment is certainly to 2020. He then talked about ways in which agricultural support will operate thereafter. Scottish priorities in that regard are a matter for Scotland to decide. That is the work that the agricultural champions have been doing. A variety of people have been considering what would be the right process.

Pillar 2 of CAP, rural support, the social fund and regional funding need to translate into funding packages and sources that are rules based and transparent and that reflect the needs of the respective parts. That is why the European packages, with all their failings of over-bureaucracy sometimes, have been successful. They have recognised where need is and we have been able to access them in a way that suited us and worked for us. That is what has to take place. So far, the discussion is not taking place. I have not even had the opportunity to have that discussion through the JMC process, for example. We would be keen to make it clear that that is what is needed, rather than some grand scheme devised in London that we will be told to get on with.

Given that Mr Gove has suggested that Scotland might wish to get on with devising its own scheme in this regard, and the agricultural champions and others have done some work on that, is there a timescale for when the Scottish Government might come forward with an idea of how we might wish to create successor arrangements to CAP?

We are certainly working on that process and are awaiting the final report from the agricultural champions, which should be available in the next few months. We will then look at how we take planning forward.

There are three separate aspects to plan for: what happens during a transition period, depending on what that transition is, while we are in the EU; for agricultural policy, how we will transition to a replacement for CAP in Scotland after that period; and what the fully fledged replacement will look like. There are a number of scenarios and steps that we are looking at, and we are relying heavily on the work of the agricultural champions, Professor Griggs’s greening group and what is coming out of the National Council of Rural Advisers on the impacts on the rural economy.

It was interesting that, in the recent debate on this in The Scottish Farmer, the champions were seen to be—and they are saying that they are—very much at one with the process that is taking place here.

Good morning. You have basically answered the question that I was going to ask, but I want to restate it.

If you do not know what someone is doing or planning, how can you plan to be with them? You do not know how much money you are going to get or how much money you will spend. It annoys me intensely that people keep saying elsewhere within this building that you should be planning and making up your own rules.

Roseanna Cunningham answered that question. You do not know the rules and you do not know what is going to happen. If you planned something and the rules were changed, it would have to be planned again. Am I correct?

Yes. We are in a sea of uncertainty at the moment. To paraphrase an American politician who talked about the known unknowns, we also fear the unknown unknowns. That is the climate within which we have to try to plan.

We can only do the best that we can in making a broad assessment of what will happen in the three periods that we are talking about: the period between now and March 2019; the period between 2019 and the end of 2020; and the post-2020 scenario. Trying to guesstimate in advance where we will be in each of those periods is not easy. If you get it wrong and you start designing schemes and policies on one basis or assumption that turns out not to be true or gets whipped out from under your feet during a negotiation process where things are traded backwards and forwards, you will find yourself back to square 1 on a very shortened timescale and you will be scrambling to put things in place that you had not foreseen 18 months earlier. It is a most unsatisfactory process.

As someone once said, you do not need a plan that goes from A to F; you need a plan that goes from A to Z.

That is self-evidently impossible, so we have to try to assess the most likely outcomes and plan for those. However, that creates internal pressures that impact across the board.

We will rise to the challenge—whatever it is. The challenge changes daily. It is the most uncertain and chaotic set of circumstances that I have ever seen. The UK Government’s negotiating style seems to be to start off by refusing to accept anything that is put to it by the EU and then to go through the whole process only to accept everything, but to claim it as a triumph because things can then move to the next stage.

The problem with that is that we have to come to the end at some point—the UK Government cannot do that at every stage. That is what it has done on the exit negotiations: the Government said that it was going to have its way and David Davis said that these would be the toughest negotiations ever, but when they got to the end they capitulated on everything and said, “Look! We can get to the next stage.” Now we have had the withdrawal discussions, we have got up to the last minute and they have suddenly said, “Oh, right, we’ll give way on everything, but, look, we can get to the next stage”. However, there is a limited number of stages and, at the end of the process, the Government will have to agree to something.

We have to be able to judge what the likelihood is of those agreements on certain issues and act accordingly. We spend time considering and thinking about that. However, we also have to keep a cool and clear eye on what we see in front of us and the way in which things are being done—and we can see that they are being done badly.

You say that if we could only get an agreement on the question of the border, then other agreements may flow from that, but my question is more on influence. With the greatest respect, listening to what you say, it sounds as though you are not really influencing much in the negotiations. For example, Michael Gove has made a number of high-profile speeches on the common agricultural policy and his vision for the future—although I noted that, last week, Ruth Davidson and Michael Gove intervened on fisheries and that does not seem to have had much influence. However, are you having discussions at ministerial level, with UK ministers, and is there any way to influence the process from that angle? Does anyone have any influence?

I can speak only from my experience. We have had a fair number of meetings at ministerial level, involving DEFRA, my counterpart in Wales and officials from Northern Ireland. The devolved Administrations meetings that are conducted on the DEFRA portfolio areas—those covered by me and Fergus Ewing—are probably the most extensive, in policy terms, that we could have in relation to any portfolios. I have always said that. In that sense, the DEFRA ministers have been ahead of the game.

However, although there has been a significant number of meetings at ministerial level—there have been seven so far and I will be going to another one in London on Monday—my sense is that there is a question mark over the extent of any effective outcome from them. There is a lot of discussion, but I am not entirely convinced that we are having it at the level that it needs to be had in order to move things forward.

10:30  

Alex Rowley put his finger on a slightly separate issue, which is that we are aware that we are speaking to ministerial counterparts who can be overruled—they have arguments within their own Governments and have their own finance ministers to deal with. We are conscious, even at that ministerial level, that there are layers of the conversation going on elsewhere that may impact on the conversations that we are having.

It is no secret that I was feeling a level of frustration that I did not manage to get environmental issues onto the agenda and discussed until the meeting in December. They were on the agenda for a meeting back in February, but nobody else came prepared to discuss the environment and it fell off that agenda. It was not until December just gone that we managed to get environment included.

We engage with the ministerial level meetings because we must engage, clearly, and sometimes helpful things come out of that, but I am conscious all the time, for precisely the reason that Alex Rowley put his finger on, that I am discussing those things with people who might themselves be left high and dry by decisions that will be taken in another place. That is what we are always subject to.

Could I—

I would like to move our discussion on a bit, Mr Russell. John Scott has a question for you on a subject on which you have pressed the UK Government.

Moving from the general to the particular, my question concerns the immediacy of the need for a seasonal workers scheme, which I have raised in questions in Parliament. Have you raised that in your discussions with UK Government ministers, because the need for such a scheme affects us all equally across the United Kingdom? Do you have an update on the likelihood of that?

I have raised the issue on a number of occasions and so has Fergus Ewing. We have raised the matter of the need for continued freedom of movement, which is the best solution to that. However, I have to say that I am none the wiser. I explained about the white paper on migration, under which the matter must be considered, and I know that the fruit growers, for example, have met the UK Government on a couple of occasions and come away tearing their hair out at the lack of progress that is taking place.

There is a huge reluctance to address the issues, and the point that Roseanna Cunningham made is important. The problem might not lie with the ministers themselves, because they might well believe that the issue needs to be addressed. However, there is no master plan for how to get from A to B on it. The UK Government has embarked on this voyage and is trying to avoid going on the rocks created by the extreme Brexiteers and those created by the EU. It is trying to steer its way through, but with no plan. I am afraid that, no matter what we say on the issue, we are not getting the result that we want.

I would like to address a slightly more worrying—

Before you move on, Mr Russell, seeking to reassure the industry, I ask whether the continuity document that was produced yesterday—

Do you mean the transition document?

The transition document; forgive me. Does that offer freedom of movement until 2020?

It does.

Does that mean that there is not such a pressing need for a seasonal workers scheme this year?

No. It does not mean that, regrettably, because we are seeing an attrition in the number of people coming, year on year. The convener represents the prime fruit-growing area of Scotland and will know that the number of people who are prepared to come is diminishing, as is the number of people who stay, year to year. People do not want to come because they do not feel welcome. That is the effect of the UK Government on those people—they do not feel welcome or secure and, as a result, they are not going to come.

It is also the effect of a weaker currency.

Can I just widen the debate slightly? There are two ways to influence things: we can stop bad things happening; and we can make good things happen. I think that Mr Rowley and I probably long for the days when we were working—he as general secretary of the Labour Party and me as chief executive of the Scottish National Party—to help to make this Parliament happen. That seemed to be clear and we thought that we were making good things happen, from different stand points. On the continuity bill, we are trying to stop the wrong things from happening, because those things undermine this Parliament.

We define “making good things happen” at the present moment as trying to ensure that the worst that happens is continued membership of the single market and the customs union. On that point I am very much with my colleague Mark Drakeford, who frequently says that, over the past 18 months, that argument has been flowing our way. We want stronger recognition of the customs union, and that is now seen as essential. It is being recognised that the single market and the customs union would be the way to solve the Northern Ireland situation. There is also a wider recognition, in this Parliament and across Scotland and a lot of the UK, that leaving the single market would be a disastrously foolish thing to do.

In my view, there is continuing progress on those issues, against a backdrop of absolute chaos, where even UK ministers often do not know what is taking place. Decisions are centralised and, because of that, they are being taken in a way that tries to find a middle way between extreme forces. I think that we are making some progress, but I cannot honestly say that it is the happiest thing that I have ever done. I wake up every morning wondering what is next.

The certainties that we are looking for are not there, and it is extraordinary that a task of this complexity and difficulty—and, in my view, foolishness—is being undertaken in this way. That is an absolute dereliction of duty.

My point is on the environment, actually—to get back to environmental matters. Notwithstanding the difficulties that you have outlined, I welcome some of the planning measures that you have taken, such as the round table on the environment and climate change that you have set up. Can you briefly update the committee on its work and on any issues that it has identified, such as gaps in monitoring and enforcement?

As it happens, having asked the round table for advice on environmental governance gaps, I received it at about 8 pm last night. I cannot yet say other than that the round table has completed that stage of its work and I now have to look at that advice in some detail. I would not want to embark on a discussion about it until I have had an opportunity to talk it through with officials.

I can say that work is being done in respect of what we would identify as governance gaps in Scotland. That piece of work will probably take up a considerable amount of time once we have had a look at the advice. However, given how late in the day the advice came—to be fair to the round table, that was the deadline that its members were given, and they did not know that I would be sitting here the next morning—it might be better to have that discussion the next time that I am in front of the committee, which, to my recollection, is not that far away.

That is correct, but I think that some colleagues want to explore this a bit further.

I appreciate that that work was concluded only at 8 pm last night, but can you talk about what the process is now? What further work will the round table do? Will that initial document be published? What opportunities do you expect there to be for Parliament to engage on the issue? I am aware that you will come back to the committee, but it would be good if we were able to look at the options that are being proposed—I assume that various options are being proposed. We are a bit in the dark.

The round table has literally just completed its work and is still finalising its report; what it has given me is its initial views. As far as I am aware, it is going to flag up a number of areas where it thinks that we need to do further research and have further consideration.

I do not think that what was received last night is an end-point to the process. I will need to consider the options and decide which ones I want the roundtable to go back to and look at in a good bit more detail. Once it has provided a final report and we have a much clearer sense of its identification of governance gaps and the options for dealing with them, that conclusion will have to be looked at.

I know that discussion is taking place in the context of the continuity bill about a wider consultation in respect of gaps in environmental governance. I anticipate that, at that point, the wider question of environmental governance will be put out there more openly.

I referred to the DEFRA devolved Administrations meetings. The one in December was when the environmental issues were first actively on the agenda. There was a brief discussion about environmental governance at that point, and an indication that the UK Government would consult in respect of England and what it was proposing. That has not yet happened, and I do not have any sense of what it intends to do, either. I suppose that we are circling back around to the issue of frameworks, because there are a lot of different ways to deal with the matter. However, talking about it in a UK sense, from our perspective, we would want the end-point to involve something that looked more like the Council of Ministers, or something set up along that basis, than what, I suspect, will come from the UK Government. Therefore that debate will go on and there will also be one in respect of the round-table advice, which will be a live discussion throughout the spring and summer.

Did the December meeting discuss what will happen when we lose the European Court of Justice? Is that a work stream that the round table is also working on?

The governance issue is about what will take its place and how we replace it. The UK Government had an initial proposal that did not sound—either to me or to the Welsh—like a route that we would necessarily want to follow. As I have indicated, it has not yet published its consultation on that, so I do not know whether that initial proposal will come out in that consultation, but we need to look at how we might think about managing that in Scotland. There may be issues for the whole of the UK but, as I have said, that comes back to the framework conversation with regard to how that should be managed.

On the conclusions that were drawn around environmental courts last year in Scotland, there are not many definitions of what an environmental court may or may not be, but has the Government now drawn a line under that issue or is it still considering a flavour of that idea?

I do not want to be drawn into a conversation about what I am considering at the moment because I need time to look at what the round table has thus far identified as being gaps. We want to work up from that basis, rather than starting at the top and working down, so let us identify what the governance gaps are in practice and then decide, given the nature of those gaps, what is the most appropriate way to manage their handling in a post-Brexit scenario.

Good morning. Given the limited extent to which parliamentarians have any control over EU legislation at the moment, what role do you see the Scottish Parliament having in scrutinising common frameworks once they are proposed, and how will they operate once they are in place?

At the moment, we have to decide the basis on which the frameworks will be set up. Those deep dives are not about deciding frameworks but about deciding whether they are necessary. If we decide that they are, it is the JMC that then decides the principles behind how they should work. At the moment, that discussion has not come to a conclusion.

The member can take it that, from the Scottish Government’s point of view, the discussion has aimed to find every way of ensuring that the Scottish Parliament will be able to scrutinise those common frameworks. I would think that the earnest of good faith in that is the continuity bill, which has had a considerably higher level of scrutiny than the withdrawal bill. Moreover, during the continuity bill’s passage at stage 2, at sessions of which the member was present, I accepted changes that would increase that scrutiny even further. We have emphasised the role that the Parliament plays in scrutiny. For example, some of the proposals that have been floating about on how agreement would be reached would involve the Parliament—as opposed to the Scottish ministers—agreeing to matters.

10:45  

I do not necessarily buy into the view that there is no scrutiny of EU legislation. There is scrutiny of EU legislation and regulation through this Parliament, through the Westminster Parliament and through the European Parliament, so it could be said that there is triple scrutiny. I have championed—as the Scottish Government has done—an increased level of scrutiny and an increased involvement by the Parliament, and we will continue to do so.

Do you foresee that new Government-to-Government processes will be put in place to deal with common frameworks now and in the future?

That is the idea. As I indicated, the list of three categories indicates how those would operate. It indicates what the Government-to-Government and the Parliament-to-Parliament relationships would be. In the first category, there is no need for any change—those subjects should not have been in the list. In the second category, there are existing arrangements that are non-legislative, which can continue or be enhanced. Again, there would be a role for the Parliament in scrutiny and decision making. In the third area, where legislation might be required, there are layers of scrutiny and decision making. If the Sewel process applies to all those areas in which legislation is required—unfortunately, the Scottish Conservatives have not confirmed that that will be the case, although I was interested to read that Lord Keen confirmed it in the House of Lords, which is helpful; I hope that he continues to hold to that view—there will also be the scrutiny that is involved as part of the legislative consent process, in which the Parliament is involved. I see that continuing.

However, the frameworks need to operate on the basis of equality, as Mr Rowley indicated earlier. The partners must work together, be treated equally and treat one another equally, otherwise the frameworks will not work.

Kate Forbes, do you want to come in on that?

Probably not.

Good morning. You have touched on this, Mr Russell, but could you give us an update on any further developments since last week on the environmental principles in the continuity bill? It would also be helpful to hear what Roseanna Cunningham has to say about that.

Roseanna Cunningham said that, as we already knew, it was only in December that the environmental issues were taken seriously by the Westminster Tory Government. Earlier, Michael Russell said that there was “no master plan”. I heartily agree. If clause 11 proceeds in such a way that our continuity bill—which I am confident will be passed tomorrow—is not necessary, what opportunities will there be for environmental protection to be addressed? How will we be able to influence that?

As you are aware—we are having a conversation on the basis that we both know what has happened, but it is useful to put this on the record—the helpful and useful amendments to the continuity bill that you, Colin Smyth, Mark Ruskell and Tavish Scott lodged on environmental issues and animal sentience were the subject of further discussions, and we have reached an agreement on what form the stage 3 amendments should take. Those amendments have now been lodged, and I look forward to their being accepted tomorrow. I hope that that will contribute to the progress of the bill. I noticed that, on Friday night, Mr Ruskell tweeted that that was an example of “mature politics”. That is a good phrase. It has been a useful process of working together to allow things to happen. That has been helpful, and I hope that we have managed to do that in some other areas, too.

As far as clause 11 is concerned, you make an entirely fair point. If clause 11 were to remain unchanged and there were to be no element of agreement or consent between the Governments or—this relates to Mr Carson’s point—the Parliaments, anything would be possible. It is completely clear that although the UK Government says that it will not alter the existing list, it could alter it. It wants to construct a system that is based on the exception rather than the rule. That is the rather interesting way in which things are now done by the UK Government: any system has to encompass any and all eventualities to stop things happening rather than saying, “This is how we are going to do things and, if there are exceptions, we will try to deal with them”.

It is perfectly possible that the UK Government could drag in something from the first list or it could find something new that it had not thought of to come on to the list. We would be powerless to stop that, which is why agreement or consent is at the heart of the matter. If there is agreement or consent, it is perfectly possibly for the UK Government to say, “We have suddenly discovered in the depth of this legislation something that we need to put on this list—let’s agree to do so,” and for the Scottish Government to say, “That’s a reasonable case that you have put, so we’re not going to unreasonably withhold that consent—let’s do it.” However, if the UK Government says “It doesn’t really matter what you think, because we’re going to do this”, anything could happen.

I thank you for reflecting on the progress that we have made in that regard. I was particularly pleased that there are commitments around article 13 of the Lisbon treaty, and that animal sentience has found an appropriate place in the bill. However, everybody recognises that there is still work to do to take the principles around animal sentience further forward.

I am aware that there have been discussions between the cabinet secretary and the UK Government about the Animal Cruelty (Sentencing) Bill, which is currently going through Westminster but has stalled to an extent. There has been extensive debate about how to put a new and improved definition of animal sentience into that bill. How confident is the cabinet secretary that that bill is the most appropriate vehicle to take the debate forward? I hope that, tomorrow, we will in essence save animal sentience in the continuity bill, but there is a debate about where we go next. What are your reflections on the discussions with Westminster ministers? Do you have faith that the process around the UK bill is adequate to reflect our concerns?

The general response to those questions is that, because there is a bill going through the UK Parliament, it would be sensible to have a conversation about the issue at that point. If the UK bill does not work out, we will come back and look at how best to manage the issue in Scotland. We need to try to work with what looks like the best available option currently to deal with the issue.

You have heard me say that I think that we have things in place in Scotland. If people want a slightly different formulation, we need to find a way to legislate for that, but let us see whether we can make it work through the UK bill first. We will try that mechanism but, if that does not work, we will fall back to a different conversation.

Are you happy with the current definition in the UK bill? Does it satisfy you or do you share some of the concerns of the UK Environment, Food and Rural Affairs Committee?

Officials are currently in discussions with officials from the Department for Environment, Food and Rural Affairs about how that definition will be taken forward. DEFRA officials are currently working on a number of comments that were made. As Ms Cunningham said, that is part of the on-going discussion about whether the UK bill is the most appropriate vehicle. The hope is that it is. If it is not, and it does not meet all the relevant concerns, alternatives can be considered.

I thank the panel for the evidence this morning, which has been useful.

10:53 Meeting suspended.  

10:59 On resuming—